EU Rights of Establishment
European laws on the establishment of businesses and migrant workers create rights for European Union nationals to set up businesses and be employed in other EU states. States must not discriminate against persons exercising these rights or their families. Children of EU nationals must be admitted to the state’s educational apprenticeship and vocational training schemes on the same conditions as those residing within the state.
As European Union Treaties have evolved, these rights have been broadened. Citizens of the European Union are entitled to access courses of education on a non-discriminatory basis. Such citizens are entitled to travel and work as student workers in other EU states provided, that they do not become a burden on the social welfare system of the latter state.
European rights to free movement and to take up employment are limited as far as they apply to the public sector. The exemption applies to employment with an element of public law and duties. The exception does not apply to most categories of teachers.
The EU Services Directive updated and liberalised the arrangements for the establishment to provide services in another EU state. or the provision of services across borders within the EU. It is applicable to any remunerated service and is likely to include educational activities and associated professions.
Children of migrant workers may have the right to reside in the state, independent of the workers. If the worker leaves the country, the right continues once it has been established in the first place. The child must have lived with one or both parents in the state while the parent was exercising EU migration rights to work in that state.
In such situations, the caring parent may be entitled to remain, notwithstanding that he or she does not have sufficient resources. The right can be used while the child is underage.
European Union requirement for equality prohibits both explicit and implicit discrimination. The broad EU Treaty rights against discrimination cover the full benefit of educational provision and collateral benefits.
Where there are rational grounds for discrimination, for example, a language requirement, it must be no broader than necessary. The required equality of treatment raised questions in the Irish context whereby most teachers are required to have some knowledge of Irish. Secondary teachers (not teaching Irish) were required to have knowledge of but not necessarily fluency in Irish.
The European Court of Justice ruled in the case of a Dutch national seeking a part time position in a VEC on the matter. He was required to pass a test in oral Irish. The Court weighed up the principle of the free movement of the workers under the European Union Treaties and the legal status of the Irish language as the first official language under the Constitution. The relevant European regulations provided exceptions in relation to conditions for linguistic knowledge relative to the nature of the post.
The Court of Justice of the European Union e accepted that the post could justify a linguistic requirement although there is not a day to day requirement in the position. It was justified on the basis of role of education in implementing the policy in respect to the Irish language. The requirement was held to be not unreasonable. However, the level of knowledge requires must not be disproportionate, with regard to the objectives.
There is now no Irish language requirement for most second level teachers provided that they are outside Gaeltacht areas and they are not required to teach in Irish. Irish language requirement still applies in primary teaching.
Loans and Grants
Students are entitled to loans and grants in accordance with the legislation of the EU states in which they are settled. Under EU law, provided that they live in the state for a sufficient length of time as to be regarded as integrated into it, an EU citizen is entitled to grants on the same terms as nationals.
States are allowed to protect themselves against grant tourism in order to ensure that it does not become an unreasonable burden. There must be a minimum degree of integration into the state, before the access to the grant and maintenance benefits of that state are available. States are free to determine the conditions for integration and may require multi year residence. Generally, five years of residence is required to quality for state benefits.
Recognition of Qualifications
EU general rules on mutual recognition of qualifications apply. As part of the push towards a concept of European Union citizenship and the completion of the internal market, the Directive on the recognition of qualifications updated and expanded the system of recognition of qualifications within the EU. See the sections on European Union law.
States may impose linguistic requirements (see above) . A high degree of fluency may be required. In the educational sector there is a wide range of design in the underlying qualifications. The makeup of theory and practice varies. The nature of the programs, qualifications and the length of time to achieve them vary considerably.
A teacher’s qualifications for the purpose of mutual recognition of qualifications usually requires completion of formal educational qualifications and post qualification practice, generally for a year.
EU State must grant access to third level education under same conditions to nationals of other EU states as to its own nationals. If there is a condition that national tests must be complied with, this must be strictly necessary. The onus on the state to justify the non-recognition of equivalent qualifications in other states.
Additional requirements which are unnecessary and discourage the exercise of European Union citizen rights may be held invalid. Requirements in relation to language must be proportionate. They must not discriminate.
Admission and Religion
The issue of discretionary admission policy in state-funded schools on the basis of religious preference has been longstanding. The Constitution permits persons to attend schools in receipt of public funds with a right to opt-out of religious instruction courses.
The Equal Status Act contains an exception for primary and post-primary schools with an objective to provide education and promote a certain religious value. It may admit persons of that religious denomination in preference to others or refuse to admit a student who is not of that denomination, where the refusal is necessary to maintain the ethos of the school.
The Education Act provides the students who are not required to attend instruction in subjects contrary to the conscience of the parents or the student’s conscience if over 18 years.
The Lisbon Treaty conferred competence on the European Union to carry out actions to support coordinate and supplement the actions of member states in various areas including education, vocational education, sport and youth matters. There is no express provision for harmonization of legislation.
An EU Directive provides for the right of non-nationals to come to another state for study purposes subject to conditions. The directive does not apply to Ireland and the United Kingdom. The rights created are limited and are regulated by national regulations. There are limited rights to undertake work and other economic activities while a student.
The European Convention on Human Rights requires the right to opt-out of religious instruction in public-funded schools. If religious concepts are fully integrated into a separate curriculum with the aim of indoctrination, there may be a breach.
The right to education is recognized by a protocol to the European Convention on Human Rights. Protocol 1 to the Convention provides that no person shall be denied the right to education. In exercising functions which it assumes in relation to education and teaching, states must respect the rights of parent to ensure education and teaching in conformity with their own religious and philosophical convictions.
The European Convention right is largely but not entirely limited to access to elementary education. The concept may differ from state to state and vary over time. Ireland entered a reservation in relation to the Protocol, to recognize the rights of parents to provide education of their own choice whether at home, in state or private schools.
Convention of Rights of the Child
Ireland has ratified the Convention of the Rights of the Child. It provides for
- that the interest of the child be paramount,
- recognition of the voice of the child and
- the principal of optimal development
The Convention provides more specific rights than those otherwise provided. If a child is deprived of the family environment either temporarily or permanently, or his best interest indicate that the child remain in that environment, the child is entitled to special protection and assistance from the state including accommodation and maintenance.
The Convention requires states to take measures to encourage regular attendance at schools. First level education is a basic minimum which the state must provide free of charge. There should be equal opportunities. It is argued that early child support services for children in need and continuous intervention are a necessary aspect of the duty.
Education should include development of personality and talent, respect for cultural identity and fundamental freedoms.